Sd B4 Subpoenas Nyc Fdr- Letter Of Assurance And Nyc-commission Agreement 097

Thomas H. Kean CHAIR

September 23, 2003

Lee H. Hamilton VICE CHAIR Richard Ben-Veniste Max Cleland

Gary Shaffer, Esq. New York City Law Department 100 Church Street New York, New York 10007

Frederick F. Fielding Jamie S. Gorelick Slade Gorton John F. Lehman Timothy J. Roeiner James R. Thompson

Philip D. Zelikow EXECUTIVE DIRECTOR

Dear Gary: This will confirm our telephone conversation responding to your concerns about public disclosure of personal information contained in documents that are covered by the Commission's document request to the City of New York. You also have indicated concerns about public disclosure of internal deliberative documents and other documents. On behalf of the Commission, I can assure you that we will not publicly disclose any documents provided to us by the City prior to the issuance of our public report next May. Beyond that (1) we acknowledge the privacy interests of individual victims, their families, and first responders, and we will not disclose their names or personal information about them in our public report without further consultation and agreement with the City or the individual in question; and (2) upon completion of our work, all Commission documents will be turned over to the National Archives pursuant to an agreement which will preclude public disclosure of personal, deliberative, and other sensitive documents for a substantial time period - typically, 25 or 50 years. As we discussed on the phone, we are confident we can successfully resist any efforts by parties in pending litigation against the City or others to obtain through third-party discovery documents produced to us. As a legislative branch entity, we are exempt from the Freedom of Information Act. And we have met personally with the leadership of the Civil Division of the Justice Department, which has assured us that they are confident that they can successfully defend us against any such discovery effort.

301 7 lh Street SW, Room 5125 Washington, DC 20407 T 202.331.4060 F 202.296.5545 www.9-1 lcommission.gov

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Gary Shaffer, Esq. September 22, 2003 Page 2

I trust this letter responds to your concerns. We look forward to a continued constructive relationship with the City and the Corporation Counsel as we proceed with our work. Sincerely,

Janiel Marcus General Counsel

AGREEMENT BETWEEN THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES AND THE CITY OF NEW YORK

THIS AGREEMENT is entered into on December 3,2003 by the National Commission on Terrorist Attacks Upon the United States ("the Commission") and the City of New York ("the City") (collectively, the "Parties") regarding the Commission's subpoena to the City, issued pursuant to Pub. L. No. 107-306, §(605)(a)(2) on November 21,2003. Whereas, the Commission is charged by statute with investigating the facts and circumstances relating to the terrorist attacks of September 11,2001 and the response to the attacks, and pursuant to the statute has issued a subpoena for tapes and transcripts of "911" calls to the City of New York on September 11,2001, relating to the terrorist attacks on the World Trade Center, and for records of interviews conducted in connection with any report, study, evaluation, critique, summary, review, or historical project relating to the New York City Fire Department's response, from September 11,2001 through September 20,2001, to the terrorist attacks ("tapes, transcripts and records"); Whereas, in the City's view, portions of the tapes, transcripts and records are confidential and privileged because they are: 1) of an intensely emotional and personal nature, disclosure of which would be an unwarranted invasion of personal privacy; 2) intra-agency materials, which are part of the consultative or deliberative process of governmental decision making; or 3) compiled for law enforcement purposes and their disclosure would interfere with law enforcement investigations or judicial proceedings, or would deprive a person of the right to a fair trial; Whereas, the tapes, transcripts and many of the records listed above are the subject of litigation between the City and the New York Times under the New York State Freedom of Information Law ("FOIL"), which litigation is currently pending before the Supreme Court of the State of New York, Appellate Division, First Department; Whereas, the Parties wish to cooperate with each other to insure a full and fair investigation of the terrorist attacks on the World Trade Center without compromising the City's interests in protecting the privacy of victims of the World Trade Center attacks, members of their families, and those who responded to the attacks; and Whereas, the Commission has given the City assurances that certain materials it turns over to the Commission will be treated as confidential; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows: 1. The City shall deliver to the Commission, no later than December 3, redacted tapes of the

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911 calls as recorded by the New York City Police Department and redacted transcripts of oral interviews conducted by the Fire Department of its employees in the aftermath of the attacks, except that transcripts of 200 of the 500 recorded interviews may be delivered to the Commission by no later than December 10, 2003. The City may only redact from the tapes and transcripts any statements that would identify the speaker or any other person and any emotional statements relating to the attacks. 2. The City will permit the Commission to inspect unredacted tapes and transcripts of the 911 calls (including the Police Department's tapes of 911 calls, tapes made by the Fire Department of portions of said calls, and transcripts that have been made of the Fire Department's tapes) and unredacted tapes and transcripts of oral interviews conducted by the Fire Department of its employees. Such inspection shall commence on December 8 and may continue until issuance of the Commission's final report, and shall take place at the City's offices between 8 A.M. and 10 P.M. on weekdays and week-ends. The Commission shall give prior notice to the City of one business day of its intention to inspect the tapes or transcripts. The City shall preserve such tapes and transcripts for a period of at least 15 years. 3. The City's delivery of the redacted tapes of 911 calls and transcripts of oral interviews pursuant to paragraph "1", and its tendering of the unredacted tapes and transcripts for inspection pursuant to paragraph "2", shall satisfy the subpoena insofar as it seeks tapes and transcripts of 911 calls and of interviews of employees of the Fire Department, and the Commission shall not issue another subpoena for such materials. Except as otherwise set forth in this Agreement, nothing herein shall affect the City's obligation to respond to the subpoena insofar as it seeks records of interviews other than the interviews conducted by the Fire Department of its employees. 4. Upon resolution of all appeals in the above-referenced FOIL action brought by the New York Times, the City shall promptly provide to the Commission all material that it is ordered to provide to the New York Times. 5. The Commission shall not publicly disclose or release any portion of the tapes, transcripts and records provided or tendered for inspection in response to the subpoena, or notes or other material derived from them, and shall not transcribe or make copies of the tapes, transcripts and records that it inspects. The Commission may, however, take such notes during its inspection of the unredacted tapes, transcripts and records as it feels necessary to fulfill its mandate, and may retain those notes subject to the provisions of this paragraph. The Commission shall oppose any subpoena or other request for disclosure of these materials. Upon completion of its work, the Commission shall enter into an agreement with the National Archives and Records Administration ("National Archives") pursuant to which public disclosure of the tapes, transcripts and records, and any notes derived therefrom, and other personal, deliberative and other sensitive documents, shall be barred for a substantial period of time, which shall be not less than twenty five years. Such agreement shall require the National Archives to oppose any

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subpoena, except a subpoena issued by a grand jury or prosecutor, or other request for disclosure of these materials. Nothing herein shall preclude the Commission from including in its final report any statement made by a person if the individual consents thereto. 6. The City shall make its best efforts to respond to any other outstanding requests by the Commission for documents by no later than December 15,2003, and in any event shall respond to all outstanding requests by December 31,2003. 7. All additions or modifications to this Agreement must be in writing and signed by the Parties. 8. The undersigned represent that they have authority to enter into this Agreement and to make all of the representations and commitments set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

The National Commission on Terrorist Attacks Upon the United States

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The City of New York

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